Allowed

A.No. 15 of 2016 of Power Grid Corporation of Inida Limited. v. Central Electricity Regulatory Commission. & Ors.

APTEL28 Oct 2022A.No. 15 of 2016

Case brief

AI extract

What is this about?

The Tribunal allowed PGCIL's appeal, holding that CERC's refusal to condone time over-run for commissioning fibre optic assets was incorrect and unfair, directing CERC to pass consequential orders.

What did the court decide?

The impugned order rejecting condonation of time over-run was vacated and the appellant's prayer for condonation was allowed.

A.No. 15 of 2016 of Power Grid Corporation of Inida… — Writ and Judicial Review | APTEL (2022)

¶1

IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

¶2

APPEAL NO. 15 OF 2016

¶3

Date : 28.10.2022 Present: Hon’ble Mr. Justice R.K. Gauba, Officiating Chairperson Hon’ble Mr. Sandesh Kumar Sharma, Technical Member

¶4

In the matter of:

¶5

POWER GRID CORPORATION OF INIDA LIMITED

¶6

“Saudamini”, Plot No.2, Sector – 29, Gurgaon – 122 001

¶7

Appellant(s)

¶8

VERSUS

¶9

1. CENTRAL ELECTRICITY REGULATORY COMMISSION

¶10

3^rd and 4^th Floor, Chanderlok Building 36, Janpath, New Delhi - 110001

¶11

2. NTPC LIMITED.

¶12

NTPC Bhawan, Core-7, Scope Complex 7, Institutional Area, Lodhi Road New Delhi – 110 003

¶13

3. NATIONAL HYDRO POWER CORPORATION LTD.

¶14

NHPC Office Complex, Lodhi Road New Delhi – 110 003

¶15

SATLUJ JAL VIDYUT NIGAM LIMITED

¶16

Power Project, Jhakri, Ramour, District Shimla

¶17

Himachal Pradesh – 172 201

¶18

5. THDC INDIA LTD.

¶19

Bhairath Puram, Tehri Uttrakhand – 249 001

¶20

NUCLEAR POWER CORPORATION OF INDIA

¶21

6. LTD.

¶22

Nabhkiya Bhawan, Anu-Shakti Naar, Mumbai – 400 094

¶23

Appeal no. 15 of 2016

¶24

Page 1 of 9

¶25

ADHPL

¶26

Bhilwara Towers, A-12, Sector – 1 Noida – 201 301

¶27

ARAVALI POWER COMPANY PVT. LTD.

¶28

1. Indira Gandhi Super Thermal Power Project, PO: Jharli, District Jhajjar, Haryana – 124 103

¶29

JAYPEE KARCHAN HYDRO CORPORATION

¶30

LIMITED

¶31

Sector – 128, Noida – 201 304

¶32

EVEREST POWER PRIVATE LIMITED

¶33

1^st Floor, Hall-1, NBCC Tower Bikaji Cama Place New Delhi – 110 066

¶34

SHREE CEMENT LIMITED

¶35

PO Box No. 33, Bangur Nagar Beawar – 305 901 District – Ajmer (Rajasthan)

¶36

CHANDIGARH (ELECTRICITY DEPARTMENT)

¶37

UT Chandigarh, Sector – 9 Chandigarh – 160 019

¶38

DELHI TRANSCO LIMITED

¶39

SLDC Building (Behind Jakir Hussain College) Tagore Hostel Lane, Minto Road

¶40

New Delhi – 110 002

¶41

HARYANA VIDYUT PRASARAN NIGAM

¶42

LIMITED

¶43

Room No. 213, Shakti Bhawan, Sector – 6

¶44

Panchkula – 134 109, Haryana

¶45

HIMACHAL PRADESH STATE ELECTRICITY BOARD

¶46

Totu, Shimla – 171 011 Himachal Pradesh

¶47

Appeal no. 15 of 2016

¶48

Page 2 of 9

¶49

POWER DEVELOPMENT DEPARTMENT

¶50

Government of J&K, Narwal Bala

¶51

1. Gladni – 180 004, Jammu

¶52

PSTCL

¶53

SLDC Building, 220 kV Sub-Station Ablowal

¶54

1. Patiala – 147 001, Punjab

¶55

Vidyut Bhawan, Jyoti Nagar

¶56

Vidyut Marg, Jaipur – 301 015,

¶57

1. Rajasthan

¶58

U.P. POWER CORPORATION LIMITED

¶59

Electricity Import-Export & Payment Circle

¶60

1. 11^th Floor, Shakti Bhawan Extension

¶61

14-Ashok Mar, Lucknow – 226 01, UP

¶62

NORTHERN CENTRAL RAILWAY

¶63

Nawab Yusuf Road, Allahabad

¶64

¶65

UTTARANCHAL POWER CORPORATION

¶66

LIMITED

¶67

1. Kanwali Road, Urja Bhawan Dehradun – 248 001, Uttrakhand

¶68

POWERLINKS TRANSMISSION LIMITED

¶69

10^th Floor, DLF Tower-A

¶70

District Centre, Jasola New Delhi – 110 044

¶71

Respondent(s)

¶72

Counsel for the Appellant(s) : Mrs. Swapna Seshadri

¶73

Ms. Ritu Aporva

¶74

Ms. Surbhi Gupta

¶75

Counsel for the Respondent(s) : Mr. Sethu Ramalingam for R-1

¶76

J U D G E M E N T (Oral)

¶77

PER HON’BLE MR. JUSTICE R.K. GAUBA, OFFICIATING CHAIRPERSON

¶78

The Appellant, Power Grid Corporation of India (“PGCIL”) is a government company tasked with the responsibility of Inter-State

¶79

Appeal no. 15 of 2016

¶80

Page 3 of 9

¶81

transmission of electricity in the country, also discharging, at the relevant point of time, functions of Central Transmission Utility, under the Electricity Act, 2003. As part of the functions assigned to it, it was called upon to execute certain projects which included laying of fibre optic communication system in lieu of the existing Unified Load Despatch and Communication (“ULDC”) Microwave links in Northern Region for tariff block 2009-14, the infrastructure thereby covered being inclusive of Asset-II (1628.966 km of Fibre Optic Communication system and Asset-III (493.064 km of Fibre Optic Communication system). The Scheduled Commercial Operation Date (“COD”) of the said works was 01.10.2012. There was time over-run of 3 months and 6 months, the actual COD being 01.01.2013 and 01.04.2013 respectively.

¶82

The Appellant had approached the Respondent Central Regulation Electricity Commission (“CERC”) by petition (No.240/TT/2013) seeking determination of annual fees and charges for fibre optic communication system in lieu of existing ULDC Microwave links in Northern Region for the 2009-14 period, praying, inter alia, for condonation of the time over-run. The Central Commission, by its order dated 01.09.2015, disallowed the said claim for condonation, the said order to that extent being assailed by the appeal at hand.

¶83

Appeal no. 15 of 2016

¶84

Page 4 of 9

¶85

It may be mentioned here that the Appellant had also expressed grievances in this appeal over adoption of cash basis approach on the loans deployed and reduction of Interest During Construction (“IDC”) up to the COD of the subject assets. However, at the hearing, the learned counsel for the Appellant submitted that the said issue has since been resolved by the appropriate order subsequently passed satisfying the claim of the Appellant in truing-up exercise.

¶86

The grounds on which the condonation was requested, and observations of the Central Commission thereupon, as recorded in the impugned order, read as under:

¶87

“15. As per the investment approval dated 25.3.2010, the instant assets were to be commissioned within 30 months from the date of investment approval by 24.9.2012 say 1.10.2012. The Asset-I, Asset-II and Asset-III in the instant petition have been commissioned on 1.4.2012, 1.1.2013 and 1.4.2013 respectively. Thus, there is no time over-run in the case of Asset-I but there is time over-run of 3 months and 6 months in the case of Asset-II and Asset-III respectively, in the instant petition.

¶88

16. The petitioner submitted the following reasons for delay in the case of Asset II and Asset-III:-

¶89

a. Delay due to late confirmation by UPPTCL: Initially UPPTCL did not agree to participate in the above microwave replacement project due to funding reasons

¶90

Appeal no. 15 of 2016

¶91

Page 5 of 9

¶92

as UPPTCL wanted DOT to compensate for the project as Microwave Replacement was necessitated due to vacation of frequency spectrum mandate by DOT. UPPTCL subsequently confirmed it’s participation in January, 2011 and asked the petitioner to take up the work, i.e. 10 months after the award of the package. Out of 4488 km of the OPGW length, UPPTCL's share was 2039 km (almost 45%) thus causing substantial delay to the project.

¶93

b. Delay due to inclusion of PTCUL: Initially PTCUL was not part of the Project but was included in the project as per decision of NRPC in the month of September, 2011.

¶94

c. Delay due to heavy foggy condition: During the installation of the OPGW, almost 4 months i.e. from Mid December, 2011 to Mid February, 2012 and Mid December, 2012 to Mid February, 2013 were lost due to heavy foggy conditions. As OPGW installation work is carried out in live line condition, it is not safe to work as lines have tripped on many occasions due to failure of T&P on account of fog.

¶95

17. We have considered the submissions of the petitioner and also pursued the letters dated 17.4.2010, 31.4.2010 and 2.1.2011 submitted by the petitioner. As regards the initial refusal of UPPTCL’s, it has already been dealt by us in order dated 8.12.2011 in Petition No. 68/2010 wherein it was clarified if the state portion is not being implemented by UPPTCL separately, the same shall be implemented by the petitioner and UPPTCL would be required to share the tariff in proportion to the assets being utilized by it. We have also noted that some portion of UPPTCL optic fibre (235.153km) was commissioned on 1.4.2013. It was made clear in the said order that the timeline for replacement of the digital microwave by optical fibre should be strictly complied with.

¶96

18. Asset-II includes State portion of PSEB-304.62 km, BBMB3.16 km, RRVPNL-451.45 Km, HVPNL-2.884 km and UPPTCL 630.13 km and Asset-III includes State portion of RRVPNL-47.177 km and PSEB-68.029 km also apart from UPPTCL-235.153 km. There is delay in commissioning of

¶97

Appeal no. 15 of 2016

¶98

Page 6 of 9

¶99

both Asset-II and Asset-III i.e. comprising of RRVPNL and PSEB’s portions. The petitioner has not submitted any documentary evidence in regard to delay caused in commissioning of optic fibre network of other constituents included in Asset-II and Asset-III. The Commission has further noted that though PTCUL was not a part of the project initially but was included in the project as per the decision of NRPC and the request of PTCUL, by the petitioner. However, the petitioner has not installed optic fibre for PTCUL in the instant petition but only Battery Bank and charger have been considered for existing communication system for PTCUL.

¶100

19. As regards the fog in Northern Part of India adversely affecting various services like transportation and communication and that demobilizing and re-mobilizing of manpower due to this intermittent condition at regular intervals also affected the progress of the work for which the petitioner has also submitted the extracts of log book for 58 days maintained by control room indicating the condition of fog in various parts of Northern Region. We are of the view that foggy conditions during winter season is a normal phenomenon in parts of Northern Region and that the impact of fog could not be so much that the work of laying OPGW was held up for entire 2 months, both in 2011-12 and 201213. Therefore, we are not inclined to condone the delay of 3 months and 6 months in commissioning of both Asset-II and Asset-III respectively.”

¶101

Having heard the learned counsel for the parties, we find the approach of the Central Commission in dealing with the explanations offered for delay to be incorrect, unjust and unfair.

¶102

The Central Commission has failed to appreciate that UPPTCL had

¶103

not been willing to take up the implementation of Microwave

¶104

Appeal no. 15 of 2016

¶105

Page 7 of 9

¶106

replacement project due to funding reasons since it desired the department of tele-communication to provide the compensation. The survey was thus carried out in the State of Uttar Pradesh by the Appellant without participation by UPPTCL. It was only in January, 2011, good ten months after the award of the package, that UPPTCL took an about turn and confirmed its participation this, inter alia , necessitating repetition of the exercise of survey, having the ripple effect of reducing the optimization of manpower, causing delay in implementation of the project, several new links having consequently being introduced compelling a change of plan. It cannot be ignored that the share of UPPTCL to the extent of 2039 km was substantial, it being 45% of the total project length of 4848 kms.

¶107

It is not in dispute that PTCUL was initially not part of the project. It was included only in March 2011, agreement relating to financial terms having been finalized even later in September, 2011.

¶108

The Central Commission has unfairly short-shifted the ground of foggy conditions. On facts there was no contest. The observations that impact of fog could not be so much that the work would be held up for entire period of 2 months is rather vague. The Commission failed to take into account the explanation that the assigned work

¶109

Appeal no. 15 of 2016

¶110

Page 8 of 9

¶111

had to be carried out in “ live line condition ” it being not safe to execute the task in the foggy conditions since line would trip due to failure of the connected systems.

¶112

For the foregoing reasons, we are unable to uphold the view taken by the Central Commission on the subject of condonation of time over-run of 3 months and 6 months in relation to Asset-II and AssetIII respectively. We vacate the impugned order to such extent and allow the prayer of the Appellant for condonation.

¶113

The Central Commission is directed to pass consequential orders in light of the above decision.

¶114

The Appeal is disposed of in above terms.

¶115

PRONOUNCED IN THE OPEN COURT ON THIS 28^th DAY OF OCTOBER, 2022

¶116

(Sandesh Kumar Sharma) Technical Member

¶117

(Justice R.K. Gauba) Officiating Chairperson

¶118

mk/nr

¶119

Appeal no. 15 of 2016

¶120

Page 9 of 9

A.No. 15 of 2016 of Power Grid Corporation of Inida Limited. v. Central Electricity Regulatory Commission. & Ors.

Case brief

What is this about?

What did the court decide?

A.No. 15 of 2016 of Power Grid Corporation of Inida Limited. v. Central Electricity Regulatory Commission. & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

A.No. 359 of 2019 of Power Grid Corporation of India Limited. Versus Central Electricity Regulatory Commission. & Ors.

A.No. 148 of 2019 of Adani Power Maharashtra Limited. Versus Maharashtra Electricity Regulatory Commission. & Anr.

A.No. 297 of 2021 of Anandvilas 81 Resident Welfare Association & Anr. Versus Haryana Electricity Regulatory Commission. & Ors.

A.No. 85 of 2019 of Jindal Aluminium Limited. Versus Karnataka Electricity Regulatory Commission. & Anr.

A.Nos. 23 of 2020 and 278 of 2021 of Avaada Energy Private Limited. Versus Central Electricity Regulatory Commission. & Ors.

Ep No. 1 of 2021 & Ep No. 2 of 2021 of Es Solar Private Limited & Anr. Versus Bangalore Electricity Supply Company Limited & Anr.